Why do I Have Miners’ Rights? The Act gives miners and their representatives many rights because Congress wanted to encourage them to take an active, responsible role in matters of mine safety and health. A good safety and health program depends on the active participation and interest of everyone at the worksite. Rights and responsibilities go hand in hand. Can’t have one without the other Everyone must work together to assure a safe and healthy work place

Why do I Have Miners’ Rights? (continued) If you and your fellow miners take advantage of these rights, you can help decrease workplace deaths, injuries and illnesses.

What Are My Statutory Rights? The right to have a representative accompany MSHA inspectors - §103(f) The right to obtain an inspection where there are reasonable grounds to believe that an imminent danger or violation exists - §103(g)

Statutory Rights (continued) The right to challenge an order, action, abatement time, etc. - §105(a), §105(b)(1)(A), and §105(d) The right to be protected from discrimination based on the exercise of rights afforded by the Act - §105(c) 105(a) assessment of penalties - operator or miners’ rep can contest the amount of the penalty 105(b)(1)(A) The operator and the miners’ rep will be notified of a proposed assessment. The operator can contest the proposed assessment 105(d) issuance, modification or termination of the violation, amount of assessment or abatement time affected miners afforded opportunity to participate as parties to hearings under this section.

Statutory Rights (continued) The right to pay during certain periods when a mine (or part of a mine) has been closed because of a withdrawal order - §111 The right to a discretionary review by the Commission of any adverse decision - §113(d) If a section is closed by an order, 104 or 107, all miners working during the shift when an order is issued, shall be entitled to their normal rate of pay for the remainder of their normal shift. If the violation is not terminated by the beginning of the next shift, they shall receive pay for up to four hours of the next shift 113(d)(2)(A)(i) request an review of any decision that would affect you

Statutory Rights (continued) The right to receive safety and health training - §115 provided during normal working hours compensated at normal rate of pay compensated for any additional costs while attending training

Who Has Statutory Rights? Miners Miners’ Representatives Applicants for a mining position

Miners’ Representatives May or may not be employee of the operator If employed by the operator, miners’ representative is entitled to participate in MSHA inspections at no loss of pay If there is no miners’ rep., the miners may select a representative to accompany the inspector on a particular inspection UMWA represents some non-union mines attorneys Freedom fighters Can only receive pay for the normal work shift The act says you will suffer no loss, but doesn’t say anything about making extra. Therefore the company does not have to pay overtime. At the end of your shift, an alternate can take over for you.

Miners’ Representatives (continued) If there is no representative available, the inspector will consult with a reasonable number of miners about health & safety matters Miners or miners’ reps may challenge any order issued by MSHA including the reasonableness of length of time set for correcting a violation You can select a miners’ rep “on the spot” and not worry about following Part 40 for notifying MSHA Reps are selected by the miners, not the company and not the inspector

Miners’ Representatives (continued) Miners and miners’ reps can request review of ALJ and Commission decisions Decision process: ALJ Commission District Court of Appeals

Miners ALL Persons Working at the Mine Laborers, Equipment Operators, Mechanics, Electricians, Supervisors, Fireboss, Foreman, Leadperson, Mine Manager, Contract Employees, etc

Applicants for a Mining Position Any person applying for work at a mining operation

Elements of Discrimination Protected Class Protected Activity Adverse Action Nexus Operator’s Defense

Protected Class Miners Miners’ representatives Applicants for employment

Protected Activities Filing or making a complaint of an alleged danger or safety/health violation Being subject of medical evaluation leading to possible job transfer--PART 62 will require mine operators to provide miners with monitoring, testing & training regarding noise exposure There is no end to the list of protected activities. This is just a list of the most common.

Protected Activities (continued) Being withdrawn from the mine for not having mandatory safety and health training Refusing, in good faith, to operate unsafe equipment Refusing, in good faith, to work in unsafe areas (“Good faith” is required on the part of the miner as well as on the part of management’s response) Give examples - - - good faith - - -

Protected Activities (continued) Reporting an accident Instituting, testifying or assisting in any proceeding conducted under the Act Having an accident is not a protected activity

Protected Activity Summary Generally, anything pertaining to his/her own safety and health Safety/health complaints Refusals made in good faith Asking for an inspection Reporting accidents Etc.

Adverse Actions Discharge Suspension Reassignment w/loss of pay Harassment Constructive discharge Failure to promote Etc. This list too is endless, but includes the most common

Nexus Connection Is there a connection between the protected activity and the adverse action? Nexus is a Latin word meaning connection

Operator’s Defense The operator of the mine has the right to present a defense and MSHA must consider that defense when making a decision as to whether or not discrimination occurred

Time Frames Miner must file complaint within 60 days of alleged discrimination…or have a good reason why that was not possible MSHA has 15 days to begin a discrimination complaint investigation and issue a recommendation within 90 days

Terminology Constructive discharge: Mixed motive: Making it so rough on an employee that he/she quits Mixed motive: The miner had engaged in protected activities but he/she did something else that, alone, would have resulted in the adverse action The most common defense brought by the company is the mixed motive defense. It’s important for each miner, and especially miners’ reps to “keep their nose clean” and not give the operator a reason to take any action against them for mixed motive reasons.

Terminology (continued) Substantial Evidence: Such relevant evidence as a reasonable mind might accept as adequate to support the conclusion Frivolous: Having no basis in law or fact; of little weight or importance Good Faith: Reasonable, honest belief

Miners’ Responsibilities Report safety and health concerns to management, or miners’ representatives Work safely and obey all MSHA and other federal, state, and local regulations as well as company safety/health policies Wear personal protective equipment and clothing as required Most companies have rules/policies that are more strict than MSHA. Miners must obey those rules as long as they do not conflict with MSHA laws and regulations.

Miners’ Responsibilities (continued) Smoking Prohibited - §110(g) You may have to pay a fine of up to $275.00 for each violation if you smoke or carry smoking materials, matches, or lighters into an underground coal mine or into any area of a mine where MSHA has deemed a non-smoking area.

Miners’ Responsibilities (continued) All agents of corporations who knowingly authorize, order or carry out violations of mandatory safety and health standards, could face the same civil penalties imposed upon the operator as defined in §110(a) and §110(d) up to $250,000 fine imprisonment for not more than 5 years or both First - must be a corporation Second - Must be an agent, could be fireboss, electrician when making exams, any person given the responsibility for a section of the mine.

Miners’ Responsibilities (continued) All operators who willfully violate mandatory safety and health standards, or fail to comply with any order issued under §104 or §107 shall upon conviction face up to $250,000 fine imprisonment for not more than 5 years or both DOES NOT have to be a corporation, but must be an operator - such as manager, foreman, etc. Someone who operates section of the mine.

Miners’ Responsibilities (continued) False Statements and False Representations §110(f) You could be fined up to $250,000, or imprisoned up to five years (or both) if you knowingly make a false statement (orally or in writing), a false certification in an application, record , report, plan, training certificate, or any other document required to be kept or filed with MSHA.

Prior Notification § 110(e) Any Person who gives advance notice of an inspection could face a monetary penalty up to $5,500 imprisonment up to six months or both Comments such as “the ducks are on the pond” could be a violation of this law. There are mines that have such codes for notifying employees that MSHA inspectors are on the property. It is not uncommon for MSHA to conduct a blitz and leave one person “manning the phones” to assure no one contacts the other employees.